Camouflaged tenancies - II

Social activist Jehangir Gai’s advice to not renew leave and license agreements with the Bombay Parsi Punchayet (BPP) has been castigated by the apex trust. The BPP Review of June-July 2013 cautions community members not to fall prey to Gai’s "half-baked legal advice.” Another article in the same issue by noted solicitor Burjor Antia of Mulla and Mulla and Craigie Blunt and Caroe terms Gai’s articles on the subject "misguiding and misrepresentative.” The law firm are the solicitors for the BPP.
"Mr Jehangir Gai, a self-proclaimed activist is instigating our leave and license (L&L) occupants not to renew their L&L agreements, in an effort to deviously make our occupants claim tenancy, with regard to BPP owned properties…

Burjor Antia (left) and Jehangir Gai

"If the L&L agreements are not renewed with the licensor (BPP) on the licensor agreeing to renew it, then the BPP clearly will take legal recourse of starting eviction proceedings to the detriment of the licensee (occupant) who has everything to lose if the court upholds our contention whilst the occupant will gain no greater advantage or facility even if the court were to hold in favor of the occupant even assuming Gai’s advice to be ungrateful and refuse to execute L & L agreement is held valid and lawful.
"Please do not be carried away by this false claim of legitimacy given by Gai as he has nothing to lose and it is you who will have to face litigation, its nuisance and its cost and in the end its uncertainty as to how the ultimate court, the Supreme Court of India will decide the issue.
"Gai has sought to prejudice the minds of our occupants by instigating them to unnecessarily challenge the legal position of the BPP and hence the BPP has published Mr Antia’s legal opinion, in full.”
Antia cited a judgment of the Bombay High Court (BHC) dated March 13, 2008 in the case of Minoo Rustomji Shroff and others vs Dali Kavasji Gai, wherein Justice J. H. Bhatia concluded that Dali Gai "was inducted as a licensee on leave and license agreement basis” and was not a tenant or sub-tenant. The judgment was challenged before the Supreme Court which also dismissed Dali Gai’s petition.
Antia further cited section 24 of the Maharashtra Rent Control Act, 1999 which states, "A licensee in possession or occupation of premises given to him on license for residence shall deliver possession of such premises to the landlord on expiry of the period of license.” Should the licensee not do so, the person/corporate can be evicted by filing a suit.
Antia observes "the statute has categorically provided that agreement of leave and license executed in writing is conclusive proof thereof and no protection of whatsoever nature is granted to the said licensee.”
With regard to the case referred to by Jehangir Gai (see "Camouflaged tenancies,” Parsiana, June 21, 2013), Antia says the "circumstances of that case are quite different. In the said case the premises (were) a shop premises located in a busy commercial market and the occupant was in possession of the premises for about 20 years before the deed of licence was executed in the year 1981. Further the landlord did not adduce any evidence relevant for the purpose of determining the nature of occupation i.e. whether a tenant or a licensee. Considering the terms and conditions of that particular agreement and peculiar facts of the said case, the Hon’ble Supreme Court concluded that the agreement in question is a tenancy agreement.”
In the case cited by Antia of Shroff (the former BPP chairman) vs (Dali) Gai a flat in Bharucha Baug was allotted to Dali Gai on a leave and license basis on a payment of Rs 400 per month as license fee and another Rs 400 towards water, sewage taxes, etc. Bhatia noted "as per the agreement executed by the respondent in favor of the trust, he had clearly accepted that he would accept the accommodation as a licensee on leave and license basis and would never claim any right, title or interest in the property nor would claim right of tenancy or subtenancy. After he executed the said agreement, he was put in possession of the said flat. The agreement was for six months and as per the terms of the contract, if the possession was not taken back on expiry of six months, the licensee would continue for further six months. According to the applicants, the period of six months had expired in November 1993. However, the respondent continued in possession as a licensee. On October 6, 1995, by a notice sent through the advocate, the license was terminated and the respondent was called upon to vacate the premises and hand over the same to the (BPP) trust. In spite of that notice, the respondent failed to vacate and, therefore, the application under section 13A(2) of the Bombay Rent Act was filed before the competent authority. The applicants (BPP) claimed order for eviction and possession and also for payment of compensation at double the rate.”
The judge noted that by signing the agreement Dali Gai had agreed not to "claim any right or protection as a tenant” and he and his family members "hereby agree and admit that no claim would be put forward regarding any right, title or interest in the said premises and/or no claim will be put forward for exclusive possession and/or claim for tenancy or sub-tenancy.”
Dali Gai had also agreed that the trustees had a right to transfer him to other premises which may be smaller, and from one colony to another colony. He also conceded "if I am given a license the clear understanding will be given to me before such allotment and you the trustees are entitled to withdraw, terminate or end my license, without giving any reason after giving me three weeks’ notice….
"It is clearly understood that legal possession of the premises is always with the trustees and I am only a bare licensee of the trustees under this agreement, as this agreement does not create tenancy rights or lease rights in my favor.”
The judge disregarded the contention that the document "was only an application” and not an "agreement.” He also noted that the use of the word "rent” instead of compensation "cannot amount to contract of tenancy.”
The judge directed the respondent "to vacate the premises and hand over possession to the applicants. The respondent shall also pay compensation at the rate of Rs 800 per month in addition to the other charges as leviable from him as per the agreement, from the date of termination of the license till he vacates the premises.”
On July 10, 2008, Supreme Court Justices Tarun Chatterjee and Aftab Alam dismissed Dali Gai’s special leave petition but permitted him six months’ time to vacate the premises.
Parsiana had written a letter to the BPP chairman Dinshaw Mehta on May 17 enclosing Jehangir Gai’s article asking for a response "so that the readers get a balanced view on the subject.” Despite a reminder being sent subsequently, Parsiana received no clarification whatsoever from the BPP.